Defense on stand for judge

By Thomas Caywood TELEGRAM & GAZETTE STAFF

Friday

Nov 30, 2007 at 3:08 AM

The Central Massachusetts representative on the board that approves state judicial appointments, Thomas J. Foley of Worcester, yesterday said the embattled judge who released convicted killer Daniel T. Tavares Jr. on personal recognizance made a bad call, but doesn’t deserve to be kicked off the bench.

“For us to come out now and call for the resignation or removal of the judge at this point is inappropriate,” said Mr. Foley, District 7 representative on the Governor’s Council. “It wasn’t the right decision, but there’s no malfeasance here.”

Mr. Tavares had completed a 16-year prison sentence for stabbing his mother to death in 1991, but was facing new charges of allegedly assaulting two correction officers, when Superior Court Judge Kathe M. Tuttman reversed a district court judge’s $100,000 bail order and released him from custody in July.

He skipped his next court date on the assault charges and fled to Washington state where he allegedly shot to death a young couple on Nov. 17 — setting off a firestorm of controversy in Worcester, on Beacon Hill and nationally on the presidential campaign trail.

Republican presidential candidate Mitt Romney, the former Massachusetts governor who nominated Judge Tuttman to the bench in 2006, has called for her to step down. Two members of the Governor’s Council, which is responsible for confirming judicial nominations, have called on Gov. Deval L. Patrick to take the first step toward firing her.

“What I want is a hearing before the Governor’s Council on whether or not Judge Tuttman should be removed, and we can’t hold that hearing unless the governor says so,” said Mary-Ellen Manning, who represents parts of Essex and Middlesex counties on the Governor’s Council.

“I think that she should be welcoming the opportunity to tell us what her decision-making process was and what information was available, and to educate us on the laws that she’s constrained by,” Ms. Manning added. “The public would be well-served.”

Governor’s Councilor Marilyn M. Pettito Devaney, who represents a small part of Worcester County and a large chunk of Middlesex County, also has called for the removal hearing, according to a report in the Boston Herald. She couldn’t be reached yesterday for comment.

Mr. Foley said there’s plenty of blame to go around in the slayings of 30-year-old Brian Mauck and his wife, Beverly, 28, in their home in Graham, Wash. Each was shot three times in the head. Mr. Foley is finishing up his first year on the council and wasn’t a member of the panel when Judge Tuttman’s nomination was approved.

“I don’t agree with the judge’s decision, but there was a series of mistakes that occurred here. This problem could have been prevented. I don’t think it all lies on the judge,” said Mr. Foley, a former head of the Massachusetts State Police. “Everybody’s human here. Mistakes are going to be made.”

The prison assaults Mr. Tavares is charged with were alleged to have occurred in 2005 and 2006, but the criminal complaints were not brought against him until early June, a week before he was scheduled to wrap up his sentence on the murder conviction.

“In my opinion, with the limited information I have, he should have been charged while he was still incarcerated. Bail wouldn’t even have been an issue with the judge at that point. But that wasn’t done,” Mr. Foley said.

Worcester District Attorney Joseph D. Early Jr.’s office wasn’t asked by state Department of Correction officials to prosecute Mr. Tavares for allegedly attacking two guards at the Souza-Baranowski Correctional Center on the Lancaster-Shirley line until June, said Mr. Early’s spokesman Timothy J. Connolly.

“We acted on it immediately because the end of this guy’s sentence was coming up,” said Mr. Connolly, who declined to discuss whether the district attorney’s office made mistakes in its handling of the case. “We’re just not going to get into finger-pointing,” he said.

Mr. Foley said he sympathized with the tough decisions judges make every day across the state. He said he does not support the call by his colleagues on the Governor’s Council for a removal hearing on Judge Tuttman. He said he regrets that the tragic deaths of two young people have become a political circus.

Having said all that, Mr. Foley added, it’s hard for him to understand how Mr. Tavares could have been judged to be likely to show up for his court dates, hence worthy of release on personal recognizance.

“He did his time, but you have to consider here’s a person who did 16 years in jail, was released and then had a pending case against him. How can you say that person is not going to be a flight risk?” Mr. Foley said.

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